Retired Supreme Court Justice David Souter passed away on May 8, 2025, at his home in New Hampshire. In this episode, his former clerks, Judge Kevin Newsom of the U.S. Court of Appeals for the 11th Circuit and Professor Jeannie Suk Gersen of Harvard Law School, join Jeffrey Rosen for a conversation on Justice Souter’s life, legacy, and constitutional impact. Retired Justice Stephen Breyer also shares memories of his former colleague.
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Today’s episode was produced by Samson Mostashari and Bill Pollock. It was engineered by Bill Pollock, Dave Stotz, and Greg Scheckler. Research was provided by Samson Mostashari.
Participants
Stephen G. Breyer is a retired associate justice of the Supreme Court of the United States. He received an AB from Stanford University, a BA from Magdalen College, Oxford, and an LLB from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 term, as a special assistant to the assistant U.S. attorney general for antitrust (1965–1967), as an assistant special prosecutor of the Watergate Special Prosecution Force (1973), as special counsel of the U.S. Senate Judiciary Committee (1974–1975), and as chief counsel of that committee (1979–1980). He was an assistant professor, professor of law, and lecturer at Harvard Law School (1967–1994), a professor at the Harvard University Kennedy School of Government (1977–1980), and a visiting professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980 to 1990, he served as a judge of the United States Court of Appeals for the First Circuit, and as its chief judge from 1990 to 1994. He also served as a member of the Judicial Conference of the United States (1990–1994), and of the United States Sentencing Commission (1985–1989).
Kevin Newsom is a circuit judge on the U.S. Court of Appeals for the 11th Circuit. Prior to his judicial appointment in 2017, Newsom was partner and chair of the appellate practice at Bradley Arant Boult Cummings LLP. From 2003 to 2007, he served as solicitor general for the State of Alabama. In 2011, Chief Justice John Roberts appointed Newsom to the Advisory Committee on Appellate Rules, on which he served for six years. Newsom holds a J.D. from Harvard Law School, where he was articles editor of the Harvard Law Review and senior editor of the Harvard Journal of Law & Public Policy. He clerked for Justice David Souter of the U.S. Supreme Court and Judge Diarmund O’Scannlan of the U.S. Court of Appeals for the Ninth Circuit.
Jeannie Suk Gersen is the John H. Watson, Jr. Professor of Law at Harvard Law School. Before joining the faculty in 2006, she served as a law clerk to Justice David Souter on the United States Supreme Court, and to Judge Harry Edwards on the U.S. Court of Appeals for the D.C. Circuit. She was educated at Yale (BA 1995), at Oxford (D.Phil 1999) where she was a Marshall Scholar, and at Harvard Law School (JD 2002), where she was a Paul & Daisy Soros Fellow. She is a contributing writer to The New Yorker.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- Jeannie Suk Gersen, “Justice Souter Was the Antithesis of the Present,” The New Yorker (May 15, 2025)
- Linda Greenhouse, “David H. Souter, Republican Justice Who Allied With Court’s Liberal Wing, Dies at 85,” The New York Times (May 9, 2025)
- Planned Parenthood v. Casey (1992)
- Bush v. Gore (2000)
- Atwater v. City of Lago Vista (2001)
Excerpt from interview: Jeannie Suk Gersen explains Justice Souter’s approach to stare decisis in the context of his opinion in Planned Parenthood v. Casey.
Jeannie Suk Gersen: Well, I don't have a confident view about how he would've voted in Roe versus Wade in 1973, had he been on the court at the time. I mean, his confirmation hearing and everything he said about Justice Harlan, the second Justice Harlan, makes it clear that he associated himself with that justice and he concurred in Roe versus Wade. And so one could maybe think, oh, maybe he would've done what Justice Harlan did in that case, or you might think he may have concurred with him on the idea that there's a right to privacy, but whether he would've also said that that includes the right to abortion, I think it's not totally clear what he would've done in 1973, but to me it seems utterly clear that an unsurprising knowing him that he would, in 1992 thought that what was proper was not to overrule a case that was barely 20 years old.
And as he said, had not been shown to be clearly wrong. And so the interesting part I think about that discussion about stare decisis in Casey was I think... And it became, even though the idea of stare decisis and of not overruling cases, except in the most compelling circumstances, that all doesn't seem very controversial. But I think what did become controversial in later debate about that case and also in justice Scalia's critique of the plurality opinion was this idea that was expressed in that stare decisis section, that if you overrule Roe v. Wade right then it would be a surrender to political pressure and an unjustified repudiation of the principle on which the court staked its authority in the first instance. That connection between the legitimacy of the Supreme Court, the authority of the Supreme Court, which really comes from its maintaining its legitimacy, and the idea that you'd be as a justice thinking about the legitimacy of the court and the authority of the court in making a decision in an individual case beyond just, do I think this was rightly decided or wrongly decided, or is this legally correct or incorrect, really based on the text and the history and things like that. So the idea that you would take into account, like, what is the role of the court and should we be thinking that even if say the prior case was wrong, it should not be overruled because it would harm the authority of the court, and it would be a surrender to the political pressure, which we know had been very strong since 1973 after Roe versus Wade it was an extremely controversial and politically radioactive issue that the court inevitably was going to have to revisit. So I think that that's a really interesting debate, and Casey really brought that to the fore. Even though that stare decisis section one might think was the least controversial of the sections in the Casey opinion in a way that it just went to the heart of what all this is about. Like what are the courts? What are they here for? How in the world do they actually have authority and people listen to them? Even though as we know, they don't have the power to actually force people to do it in any way other than, that they write opinions. People are persuaded by them, and then there's a social practice of obeying them.
Excerpt from interview: Justice Stephen Breyer reflects on his relationship with his friend and colleague Justice David Souter.
Justice Stephen Breyer: Oh, it was a privilege for me to be on the court with him. I mean, he was a great judge. He was intelligent. He had a good sense of humor. He was a thoroughly decent person. And he thought mostly about, not himself, but of the people that the Constitution is designed to serve. The judges are going to miss him. The lawyers are going to miss him. The country is going to miss him. And I will certainly miss him very much indeed. He was my friend, my very good friend.
He was just fun to talk to. We would talk about anything, but also all the time people kept... I used to say sometimes if I was speaking about the court, people would say, well, are you recognized? Do people recognize you when you're in Washington and walking outside? And I'd say, not usually, but sometimes they do. And if they do, they always ask the same question, one question, so that they fell for, and they'd say, well, what was the question? And the question they'd have asked was, aren't you David Souter? Then this is absolutely true when I was appointed to the court, you have to go through a confirmation process. And so my face was a little more familiar. He was having lunch at Jacob Wirth restaurant in Boston with some friends. And the waiter kept looking at him and then came up and said, aren't you on the Supreme Court? And he said, yes, I am. He said, well, what do you think is the best thing about it? And he said, oh, the best thing. He said, that's working with David Souter. It was fun. It was fun.
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